Keoghs Insight

Author

Paul Edwards

The next step: Civil Justice Council to consider Fixed Costs in Lower Value Clinical Negligence Claims

Blogs23/02/2018

Whilst Sir Rupert Jackson was providing his updated report on Costs last year he tried to steer clear of the issue of costs in respect of clinical negligence claims, in the knowledge that the Department of Health was already looking into the subject. The DoH has recently published its report summarising the responses it received to its consultation and setting out the next steps.

The consultation, launched in January 2017 was to consider the potential for a scheme of fixed costs for claims where damages were between £1,000 and £25,000. A series of questions were posed by the Department and the answers were largely as expected, with Claimants and Defendants in disagreement in principle over most of the issues, such as the introduction of a fixed costs scheme in principle, the methodology for such a scheme including quantum and the operation of exemptions. It was only with firms who both act for both Claimants and Defendants where the response on the merits of a fixed costs regime was more evenly split.

Unsurprisingly, due to the volumes of claims received, most data relied upon and answers given focussed on claims involving NHS Resolution. It was acknowledged that savings in the cost of bringing claims against the private sector would also be achieved. Indeed it was the private Medical Defence Organisations who were most strongly in favour of a fixed costs regime for claims worth up to £250,000.

The DoH also referred to a number of other factors to take into account. The first was the change in the personal injury discount rate which has significantly increased the cost of such claims. Future developments to this will need to be carefully monitored. Additionally note was taken of Sir Rupert Jackson’s recent proposals and in light of those the Secretary of State for Health has begun work with the Civil Justice Council to establish a working group to set up a bespoke process for clinical negligence claims.

It is intended that this group will build upon earlier meetings that took place with Claimant representatives to identify improvements that can be made to the claims process across the public and private sector, including how to dovetail with the Welsh ADR Redress process.

It is expected that proposals will be put forward by the CJC working group in the Autumn of this year. Beyond that it is hard to predict how quickly any recommendations could be introduced, and it will depend on the reforms themselves how soon there is an impact on the way claims are brought and the costs attributable to them. Realistically April 2019 would be the very earliest, though that is perhaps optimistic. What is clear however is there is now an appetite for fixed costs in the clinical negligence arena and whilst fixing costs in larger matters may need to wait, there will almost certainly be a fixed costs regime introduced for matters where damages are up to £25,000. Such reform is clearly to be welcomed due to the savings it will attract and in ensuring costs are proportionate. Dependant on the format of the new regime paying parties will however need to be on their guard for any potential unintended consequences such as claims being overvalued to escape the fixed costs or changes in behaviour that may be encouraged.